High court hears a case of mistaken (political) identity

The U.S. Supreme Court last month heard the case of a police detective demoted for what could be called political in-activism. His offense? Picking up a political sign for his mother.

Jeffrey Heffernan is a 30-plus year police veteran in Paterson, N.J. The town’s campaign for mayor was in full swing in 2006. The police chief, Heffernan’s boss, backed one candidate, but Heffernan’s mother backed another. Her yard sign had gone missing, so she asked her son to pick up one for her on his day off.

As he was walking out of campaign headquarters, a fellow Patterson officer drove by and saw him carrying the sign. It didn’t take long for word to make it back both to the mayor’s office and the police department. The next day, Heffernan found himself demoted from detective to walking patrol officer.

His supervisors cited Heffernan’s “political involvement” as the reason for the demotion. But Heffernan stressed that he didn’t live in the district and was therefore not eligible to vote in the election. He really didn’t care who won.

He sued on the grounds that the retaliatory demotion violated his freedom of speech. But his admission that he didn’t care about the election might have watered down his argument.

“The First Amendment guarantees the right to freedom of speech and freedom of association. Your client was neither speaking nor associating. So how could he possibly have a cause of action under the First Amendment?” Justice Antonin Scalia asked Mark Frost, Heffernan’s lawyer. Scalia answered his own question, saying, “He was not expressing any First Amendment view whatever. I mean, he was fired for the wrong reason, but there’s no constitutional right not to be fired for the wrong reason.”

The lawyer for the city of Paterson agreed with Scalia.

“He may have a state law right; he does have a collective bargaining agreement right, but he doesn't have a First Amendment right, because he’s not engaging in First Amendment-protected activity,” Thomas Goldstein said.

Justice Elena Kagan took the opposite side, saying the First Amendment should apply even to people with lukewarm or apathetic views.

“A lot of people in this country could not care less. They don’t vote. They don’t pay attention. They wouldn’t know who was running. But the government can punish that person because that person doesn’t share the government's views? I would [say] that is one strange doctrine,” Kagan said.

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